CLINT WALKER v. NEW JERSEY DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2653-06T22653-06T2

CLINT WALKER,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________________________________________

 

Submitted October 24, 2007 - Decided

Before Judges Cuff and Lihotz.

On appeal from a Final Agency Decision of the Department of Corrections.

Clint Walker, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

Clint Walker, a state prison inmate, appeals from a final decision of the Department of Corrections (DOC) issued on November 20, 2006, upholding a hearing officer's (HO) finding that Walker violated N.J.A.C. 10:4-4.1(a) *.002, which prohibits assaults of any person. Walker's sanctions included fifteen days detention with credit for time served, 270 days administrative segregation, and 270 days loss of communication time. Walker argues that the agency's decision is arbitrary and capricious or, alternatively, that the charge should have been downgraded. After consideration of defendant's contentions, in light of the record and applicable law, we affirm.

On November 11, 2006, as Walker was returning to his cell from his job in the prison kitchen, he proceeded through the metal detector and engaged in a verbal dispute with a corrections officer manning the security device. Sergeant Gerard Petti escorted Walker into a conference room because he perceived Walker's comments to be disrespectful. Petti admonished Walker, telling him "that his conduct . . . was unacceptable." Petti released Walker to his cell.

As Walker exited the conference room to pass Petti, who was standing by the doorway, he "lowered his left shoulder driving it into the left side of [Petti's] chest[,] knocking [him] off-balance." As he fell backward, Petti grabbed Walker and forced him into the wall. Walker was subdued and handcuffed by Senior Corrections Officers D. Auriemma and B. Reddi who had followed Petti into the conference room. Senior Corrections Officer Alvarez activated the riot bell, which interrupted the 6:00 p.m. mass movement, placed the institution in lockdown, and required the officers to suit up in riot gear.

Walker was served with disciplinary charges on November 15, 2006. He was charged with violating N.J.A.C. 10A:4-4.1(a) *.306, prohibiting conduct, which disrupts or interferes with the security or orderly running of the correctional facility and *.002, assault.

The initial hearing was held on November 17, 2006, before a disciplinary HO. Walker testified that he accidentally bumped Petti as he exited the conference room because his prosthetic left eye impeded his judgment of distances. Walker noted that no injuries occurred. He requested that the *.002 charge be downgraded to .013, prohibiting unauthorized physical contact. Walker, through his counsel substitute, requested that the *.306 charge be dismissed because the conference room was a controlled environment. The HO also considered the operations reports authored by Petti, Auriemma, Reddi, and the facility nursing staff.

The HO found the charges were supported by the operations reports and sanctions were necessary to deter assaults on staff members. On November 20, 2006, the DOC upheld the HO's determination.

Following Walker's appeal, we issued a limited remand for the DOC to consider Walker's request to dismiss the *.306 charge. Upon further review, the charge was dismissed.

On appeal, Walker presents the following arguments:

POINT ONE

THE HEARING OFFICER RENDERED AN ARBITRARY AND CAPRICIOUS DECISION IN FINDING THE APPELLANT GUILTY ON TENUOUS EVIDENCE, CONTRARY TO THE STANDARDS ON INMATE DISCIPLINE.

POINT TWO

THE ADMINISTRATOR ERRED IN . . . NOT DOWNGRADING THE *. 002 CHARGE TO A 013 CHARGE, AS PER THE APPELLANT'S REQUEST.

We may reverse "the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). "Substantial" evidence refers to "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956). Walker's argument is the proofs fail to establish that his physical contact with Petit was intentional. We disagree. The record contains sufficient credible evidence from the operational reports of the three correctional officers that belie Walker's assertion and support the HO's determination. "Where there is substantial evidence in the record to support more than one regulatory conclusion, 'it is the agency's choice [that] governs.'" In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.) (quoting De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 537 (1985)), certif. denied, 127 N.J. 323 (1990). "We cannot substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record." Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005).

Affirmed.

(continued)

(continued)

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A-2653-06T2

November 27, 2007